The State has won its appeal against a significant ruling that an international protection applicant was entitled to €21,877 damages over a delay in permitting him access to the labour market here.
A five-judge Supreme Court on Thursday unanimously overturned a High Court decision that the Georgian national was entitled to damages against the State over breach of his rights under EU law, specifically a failure to properly transpose a 2013 EU directive into Irish law.
Under that directive, all EU member states are obliged to ensure that international protection applicants have access to the labour market no later than nine months from the date their application is lodged. That applies provided a decision on their application has not been taken and any delay cannot be attributed to the applicant.
The directive was transposed into Irish law under regulations made in 2016, with the addition of the wording “or attributed in part”.
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The man, referred to as Mr K, applied for protection here in September 2019 but was not informed that a preliminary interview was scheduled that same month. His social worker arranged another interview in December 2019, at which he was given a questionnaire to be completed by early January 2020.
That date was extended on what Judge Gerard Hogan described as “numerous” occasions for various reasons, including that he could obtain legal representation and his lawyers could take instructions, that the services of a Georgian translator could be retained and the outbreak of the Covid-19 pandemic. The completed questionnaire was submitted on August 25th, 2020.
That same month, the Labour Market Access Unit refused to grant Mr K permission to access the labour market on the basis that the delay in issuing the decision on his protection application was attributable to him.
The refusal was upheld in March 2021 by the International Protection Appeals Tribunal (Ipat), which also held the delay was attributable to Mr K.
Separately, Mr K’s protection application was granted and he got permission to work in June 2022.
In its judgment on his judicial review challenge to the Ipat decision, the High Court held that decision was irrational and unreasonable and he was entitled to damages to reflect the financial loss sustained due to breach of EU law. Judge Mark Heslin found the State failed to properly transpose the directive and this caused Ipat to err in its decision.
The Minister for Justice and the State secured leave to appeal directly to the Supreme Court. As part of the appeal, the court referred issues related to interpretation of the directive for determination by the Court of Justice of the EU (CJEU).
Giving the Supreme Court’s judgment, Hogan said, based on the CJEU findings, the directive did not preclude the inclusion of the words “in part” in the national legislation transposing the directive.
The judge found aspects of the Ipat’s reasoning could not be stood over in that it had held Mr K responsible for all the delay. The judge said, while Mr K could not be held responsible for the delay until the end of April 2020 and that delay could be fairly excused, he had offered no excuse whatsoever for any delay after that date.
Nonetheless, he held the actual Ipat decision was legally correct as Mr K had not established there was a delay of nine months in reaching a decision on his application of which no part of that delay was attributable to him.
That meant he was not entitled at the end of August 2020 to a permission for labour market access, the judge said. It followed his claim for damages was not successful because that claim was predicated on the Ipat decision being invalid by reason of a breach of EU law.
